1 2025:CGHC:59285-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 783 of 2017 1 - Narsing Vaishnav S/o Shri Kapiketan Vaishnav, Aged About 21 Years R/o Village Bandhapali, Police Station Kartala, Revenue And Civil District Korba, Chhattisgarh. ... Appellant versus 1 - State Of Chhattisgarh Through The Police Of AJJAK Korba, Revenue And Civil District Korba, Chhattisgarh. ... Respondent For Appellant : Mr. Sandeep Dubey, Advocate For Respondent/State : Mr. Amit Buxy, Panel Lawyer DB:Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (05.12.2025) Sanjay Kumar Jaiswal, J. 1. Invoking criminal appellate jurisdiction of this Court under Section 374(2) of the CrPC, the appellant herein has preferred this criminal appeal calling in question legality, validity and correctness of the judgment of conviction and order of sentence dated 25.02.2017 passed by the learned Special Judge, SC & ST (Prevention of Atrocities) Act, Korba HEERA LAL SAHU Digitally signed by HEERA LAL SAHU Date: 2025.12.06 13:30:49 +0530 2 (C.G.), in Special S.T.No.15/2014, by which the appellant has been convicted and sentenced as under:- Conviction Sentence & Fine U/s 363 of IPC R.I. for 5 years and to pay fine of Rs. 2,000/-, in default of payment of fine amount additional R.I. for 6 months. U/s 366 (A) of IPC R.I. for 7 years and to pay fine of Rs. 3,000/-, in default of payment of fine amount additional R.I. for 1 year. U/s 376 (1) of the IPC as also U/s. 4 of the POCSO Act [However, in light of Section 42 of the POCSO Act, sentenced/punished only U/s 4 of POCSO Act] R.I. for 10 years and to pay fine of Rs. 5,000/-; in default of payment of fine, additional R.I. for 2 years. U/s 3(2)(V) of SC/ST Act Imprisonment for life and to pay fine of Rs.5000/-; in default of payment of fine, additional R.I. for 2 years. All the sentences were directed to run concurrently 2. The prosecution's case in brief is that the victim (PW-1) is a member of the Scheduled Tribe, and she lives with her parents in the village Bandhapali. Appellant -Narsingh Vaishnav of her village kept having physical relations with 3 her for a year before on 31.05.2014 by saying that he loves her and will marry her and on 31.05.2014 at about 9:00 pm, when the victim was sleeping after having dinner, he called her on the road over phone and seduced her by saying he will marry her, took her to Nonbirra in the night itself in a bus and from there took her to Pathalgaon in another bus and kept her in the waiting room. After that, he took the victim to his sister's house in the village of Balajhar, where the accused forcibly raped the victim by promising to marry her that night. On Tuesday, the father of the accused, Narsingh Vaishnav, Sarpanch Kailash Ram and Kotwar Sufal Das (PW-9) went to village Balajhar and brought the victim and accused from Balajhar to village Bandhapali, after which the victim lodged a report on 04.06.2014 in Kartala police station regarding the incident on 04.06.2014, on which FIR was lodged vide Ex.P-1. The case was taken up for investigation. During the investigation, the victim underwent a medical examination vide Ex.P-12A, statements from the victim and witnesses were recorded, the victim's caste certificate was obtained and seized vide Ex.P-7, documents related to the victim's age were seized vide Ex.P-5-C, Crime Details form was prepared vide Ex.P-3. The accused was arrested vide Ex.P- 13, and he was medically examined vide Ex.P-14B. Slides 4 and other material prepared during the medical examinations of the victim and accused were sent for chemical Examination to FSL. After completing investigation, the charge sheet was filed. 3. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 13 witnesses and exhibited 16 documents. Statement of the appellant was also recorded under Section 313 of Cr.P.C. in which he denied circumstances appearing against him in prosecution case, pleaded innocence and false implication. 4. After hearing both the parties, the trial Court passed the impugned judgment of conviction and order of sentence. 5. Learned counsel for the appellant submits that the victim (PW-1) was a consenting party with the accused/appellant who willingly lived with him. The prosecution has failed to prove through valid evidence that the victim was a minor and below 18 years of age at the time of alleged incident. In such a situation, the said offence cannot said to be proved. Hence, considering the above, it is prayed that the appeal may be allowed and the impugned judgment may be set aside and the accused/appellant may be acquitted of the charges levelled against him. 6. On the other hand, learned counsel for the State submits that the finding recorded by the Trial Court regarding 5 conviction and sentence of the appellant is based on sufficient and reliable evidence, which does not require any interference. Therefore, the contention made by the counsel for the appellant is not acceptable, hence, the appeal may be dismissed. 7. We have heard learned counsel appearing for the parties and perused the record with utmost circumspection. Age Determination 8. In the instant case, the victim (PW-1) herself stated her date of birth as 21.06.1997, and to corroborate her date of birth, the prosecution has produced a mark sheet and admission register vide Ex.P-5C, which was marked as an exhibit based on the statement of her father (PW-2). However, the father (PW-2) stated that the police had not obtained any mark sheet or document from him. Furthermore, no teacher, head master, or any other witness from the school who recorded the date of birth was examined to authenticate the said mark sheet and admission register. 9. How, dakhil-kharij register is to be treated relevant came up for consideration before the Hon’ble Supreme Court in Babloo Pasi v. State of Jharkhand and another (2008) 13 SCC 133, wherein it has been held as under:- “22. It is well settled that it is neither feasible nor desirable to lay down an 6 abstract formula to determine the age of a person. The date of birth is to be determined on the basis of material on record and on appreciation of evidence adduced by the parties. The Medical evidence as to the age of a person, though a very useful guiding factor, is not conclusive and has to be considered along with other cogent evidence. 28. It is trite that to render a document admissible under Section 35, three conditions have to be satisfied, namely: (i) entry that is relied on must be one in a public or other official book, register or record; (ii) it must be an entry stating a fact in issue or a relevant fact, and (iii) it must be made by a public servant in discharge of his official duties, or in performance of his duty especially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. (See: Birad Mal Singhvi v. Anand Purohit (1997) 4 SCC 24).” 10. The Supreme Court in the matter of Sunil v. State of Haryana (2010) 1 SCC 742 has held as under:- “26. Bishan, PW8, the father of the prosecutrix has also not been able to give correct date of birth of the prosecutrix. In his statement he clearly stated that he is giving an approximate date without any basis or record. In a criminal case, the conviction of the appellant cannot be based on an approximate date which is not supported by any record. It would be quite unsafe to base 7 conviction on an approximate date. 34. On consideration of the totality of the facts and circumstances of this case, it would be unsafe to convict the appellant when there are so many infirmities, holes and lacunas in the prosecution version. The appellant is clearly entitled to benefit of doubt and consequently the appeal filed by the appellant deserves to be allowed. The appellant is directed to be released forthwith, if not required in any case.” 11. Hon’ble Supreme Court in the matter of Alamelu and another v. State represented by Inspector of Police, (2011) 2 SCC 385 has held that:- “the transfer certificate which is issued by a government school and is duly signed by Headmaster would be admissible in evidence u/s 35 of the Evidence Act, 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the prosecutrix in the absence of the material on the basis of which the age was recorded. The Supreme Court held under the facts and circumstances of the case that the date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined.” 12. The Supreme Court in the matter of Manak Chand alias Mani v. State of Haryana, 2023 SCC Online SC 1397 has reiterated the law laid down by it in the matter of Birad Mal Singhvi vs. Anand Purohit, 1988 (Supl.) SCC 604 and observed that the date of birth in the register of the school 8 would not have any evidentiary value without the testimony of the person making the entry or the person who gave the date of birth. It was further reiterated that if the date of birth is disclosed by the parents, it would have some evidentiary value but in absence the same cannot be relied upon. 13. In the instant case, on the basis of the above judgment, it is clear that neither the competent teacher nor the head master who made the entries in the mark sheet and admission register has been examined, therefore the said document is not authenticated. 14. So far as the fact of the victim (PW-1) herself stating her date of birth is concerned, any child knows their date of birth only based on the information given by their parents. In this case, the father (PW-2) and the mother (PW-5) were examined. The mother (PW-5) was unable to state the victim's date of birth, and the father (PW-2) only stated that the victim was 17 years old. In cross-examination, he admitted that he had deliberately understated the victim's age at the time of her school admission. In these circumstances, this Court finds that the submitted mark sheet is not duly authenticated. Based on the victim's statement alone, it cannot be considered to be proved that her date of birth was 21.06.1997. Thus, the prosecution has 9 failed to prove that the date of birth of the victim was 21.06.1997 and she was a minor below 18 years of age on the date of the incident i.e. 31.05.2014. Consenting Party 15. The report was lodged by the father (PW-2) of the victim (PW- 1), and the father (PW-2) admitted in his cross-examination that the report was lodged at the behest of Gajanan Agarwal and other villagers, even though he himself did not want to file it. Gajanan Agarwal had told him that if he didn't file the report, he (Gajanan Agarwal) would file a report on behalf of his daughter, and in return, he would receive 1.5-2 lakh rupees. 16. The victim (PW-1) herself stated in her court statement that she lived with her parents in the village of Bandhapali, Kartala, Korba, and that the accused called her on the date of offence at 9:00 PM, saying he loved her very much and would marry her. He then took her by bus, first to the village of Nonbirra, then by another bus to Patthalgaon, and finally to the village of Balajhar, where he kept her at his sister Jamila's house and had physical relations with her. She belongs to the Rathia caste. In cross-examination, the victim also stated that the accused was two years ahead of her in school, that they had been talking to each other from the beginning, and that they loved each other. She did not tell 10 her parents about the accused's promises of love and marriage, or about him taking her away, because she loved the accused. When the victim was at the bus stand to go to Nonbirra, there were many people, but she did not ask anyone for help, even though the accused was taking her away against her will. While sitting on the bus, she also did not tell any passenger that the accused was taking her away forcibly. In Patthalgaon, she also did not tell anyone that the accused had brought her there against her will. At the accused's sister Jamila's house in the village of Balajhar, she did not tell Jamila or anyone else that the accused had abducted her or that they had eloped. She was comfortable at the accused's sister's house in Balajhar and had no problems there. When her father, the accused's father, and the village Kotwar came to pick them up in Balajhar, she still did not tell them that any molestation or wrongdoing had occurred. In cross-examination, she also admitted that she did not want to file a report. She also admitted that she did not resist when the accused had physical relations with her and that the accused did not rape her. Thus, it is clear from the entire statement of the victim herself that she was a consenting party. Conclusion 17. Thus, the prosecution has failed to prove that the victim was 11 a minor under the age of 18 at the time of the alleged incident. The victim has also been found to be a consenting party. As such, the offence under Sections 363, 366(A) and 376(1) of IPC and Section 4 of the POCSO Act is not found to be proved. Therefore, the conviction and sentence for the aforesaid offences cannot be sustained. As such, also no offence under Section 3(2)(V) of the SC & ST Act, 1989 is made out against the appellant. 18. In view of the aforesaid discussion and in light of the above referred judgments, the appeal is allowed and the impugned judgment of conviction and order of sentence is hereby set aside and the appellant is acquitted of the said charges. 19. The Appellant is on bail. He need not to surrender in this case. However, his bail bonds shall remain in force for a period of six months in view of the provisions contained in Section 437-A of the Cr.P.C. 20. Let a certified copy of this judgment along with the original record be transmitted to the concerned trial Court forthwith, for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge H.L. Sahu